GONZÁLEZ, J.
¶ 1 We are asked whether property developers' representations about a property anchoring a development may impose an equitable servitude on that property. We find that such representations may impose a servitude if, among other things, they are made by someone with the authority to burden the property. We are also asked whether the Riverview Community Group has the authority to pursue equitable relief based on the developers' representations to its members. We find that it does. We reverse the dismissal of Riverview's lawsuit and remand to the trial court for further proceedings consistent with this opinion.
¶ 2 In the 1980s, Charles Spencer and George Livingston formed a partnership to develop and sell property in rural Lincoln County near the confluence of Lake Roosevelt and the Spokane River. Over the next 20 years, this partnership and its successors built the Deer Meadows Golf Course Complex (including a golf course, restaurant, hotel, store, and club), platted several nearby parcels of property into subdivisions (the Deer Meadows and Deer Heights subdivisions), and sold lots to private land owners for homes and vacation properties. A plat identifying the golf course was recorded, and an image of the plat was used to help advertise the development. A local newspaper quoted Spencer as saying he built the golf course complex "`so it would help sell the residential lots around here,'" and the lots
¶ 3 Many of those who had bought homes in the various subdivisions developed by Spencer and Livingston believed they had been promised that the golf course complex would remain a permanent fixture of their community, and they made the decision to purchase homes based in part on that promise. Some of those homeowners formed the Riverview Community Group, which filed this lawsuit seeking to bar the defendants from selling off the former golf course as individual homes, among other things. Riverview argued that the golf course complex was the heart of the community and provided necessary amenities and that its members had bought their property reasonably believing it would remain a part of their development. Riverview named as defendants the original Spencer & Livingston partnership, George and Sheila Livingston, the partnership's alleged successors, and anyone else claiming an interest in the golf course property. Riverview sought to impose an equitable servitude on the golf course property that would limit its use to a golf course or, if that was untenable, for other equitable relief. It also sought injunctive relief.
¶ 4 The Livingstons responded that Riverview's attempt to bring any claims amounted to fraud on the court. They moved for dismissal under CR 12(b)(7) for failure to join indispensable parties under CR 19. S.O.S. LLC, later joined by Livingston, moved for summary judgment, arguing, among other things, that equitable servitudes were not available in Washington unless created in writing.
¶ 5 In 2012, the trial judge, issued a memorandum decision granting the Livingstons' motion under CR 12(b)(7) for failure to join indispensable parties. The decision gave Riverview a "reasonable period of time" to join the Deer Meadows property owners. CP at 212. The following month, the trial court issued an order stating that "the legal issue of whether an equitable servitude can be created by implication is a question of first impression in the State of Washington" and granted summary judgment in favor of the defendants to expedite review. Id. at 248.
¶ 6 The Court of Appeals largely reversed the trial court's legal rulings, finding that Riverview had organizational standing and the individual property owners were not essential parties, and concluding that Washington recognized equitable covenants. Riverview Cmty. Grp. v. Spencer & Livingston, 173 Wn.App. 568, 295 P.3d 258 (2013). However, it affirmed summary judgment on the grounds that it would be "irrational to require the defendants to rebuild and operate a failing business." Id. at 591, 295 P.3d 258. We granted Riverview's petition for review. Riverview Cmty. Grp. v. Spencer & Livingston, 178 Wn.2d 1009, 308 P.3d 643 (2013). We affirm most of the Court of Appeals' legal rulings but find its dismissal was based on facts not found in the record. We affirm in part, reverse in part, and remand to the trial court for further proceedings.
¶ 7 We review summary judgment de novo, taking all inferences in favor of the nonmoving party. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857 (2011) (citing Mulcahy v. Farmers Ins. Co. of Wash., 152 Wn.2d 92, 98, 95 P.3d 313 (2004)). We review CR 12(b)(7) dismissals for failure to join an indispensable party under CR 19 for abuse of discretion "with the caveat that any legal conclusions underlying the decision are reviewed de novo." Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 493, 145 P.3d 1196 (2006) (citing Equal Emp't Opportunity Comm'n v. Peabody W. Coal Co., 400 F.3d 774, 778 (9th Cir.2005)). Such dismissals "should be employed sparingly when there is no other ability to obtain relief." Id. at 494, 145 P.3d 1196 (citing 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
¶ 8 Cases should be brought and defended by the parties whose rights and interests are at stake. See Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994) (citing Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 138, 744 P.2d 1032, 750 P.2d 254 (1987)). This principle is reflected in the court rules and in common law limitations on who can bring suit. Id.; see also CR 17(a). S.O.S. LLC and the Livingstons argue that Riverview lacks standing to sue on behalf of its members, that it is not a real party in interest, and that the individual landowners are indispensable parties. The Court of Appeals rejected these arguments. We affirm.
¶ 9 "Organizations have standing to assert the interests of their members, so long as members of the organization would otherwise have standing to sue, the purpose of the organization is germane to the issue, and neither the claim nor the relief requires the participation of individual members." Five Corners Family Farmers v. State, 173 Wn.2d 296, 304, 268 P.3d 892 (2011) (citing Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002) (Firefighters)). Riverview has satisfied this test. Several of its members have filed sworn declarations that establish the basis of a claim, satisfying the first element of the Firefighters test. The homeowners formed Riverview with the purpose of defending their interests, satisfying the second element. Finally, Riverview can pursue this claim for equitable or injunctive relief without the participation of individual members. The relief requested — the imposition of an equitable servitude on the land and/or some sort of injunctive relief — does not require the participation of the individual members.
¶ 10 For similar reasons, we find the CR 17 and CR 19 arguments unavailing. CR 17(a) provides that "[e]very action shall be prosecuted in the name of the real party in interest." Given that we find organizational standing, this rule has been satisfied. Nor have the respondents otherwise established that the individual property owners in the subdivisions were indispensable parties under CR 19(a), and we agree with the Court of Appeals that the trial court was incorrect in concluding otherwise. The Livingstons argue that the individual land owners in the developments are necessary parties because they could individually bring suit, raising the possibility of inconsistent results. Among other things, a party is indispensable when it "is needed for just adjudication." Gildon, 158 Wash.2d at 494, 145 P.3d 1196 (citing Crosby v. Spokane County, 137 Wn.2d 296, 306, 971 P.2d 32 (1999)). "[I]f an absent party is needed but it is not possible to join the party, then the court must determine whether in `equity and good conscience' the action should proceed among the parties before it or should be dismissed." Id. at 495, 145 P.3d 1196 (quoting Crosby, 137 Wash.2d
¶ 11 We affirm the Court of Appeals on these intertwined issues and find Riverview may maintain this action.
¶ 12 Next, we turn to whether, under Washington law, an equitable servitude limiting the use of land may be implied. Riverview argues that it may under either § 2.10 of the Restatement (Third) of Property (2000) or Johnson v. Mt. Baker Presbyterian Church, 113 Wn. 458, 194 P. 536 (1920). We find that an equitable servitude and injunctive relief are available under Johnson and leave for another day whether § 2.10 of the Restatement correctly articulates the law in Washington State.
¶ 13 In Johnson, a Seattle a property developer platted and developed a new neighborhood, the "Mt. Baker Park, an addition to the city of Seattle." 113 Wash. at 459, 194 P. 536. The developers advertised the neighborhood as a "strictly high-class residence section" that "would not permit any buildings other than residences." Id. Most of the deeds for lots in the neighborhood included boilerplate language limiting building to "`single, detached residence[s],'" which the court found increased the sale price of the lots by 15 to 20 percent. Id. at 460-41, 194 P. 536. But not all of the deeds in the development contained the boiler plate restriction. Id. at 460, 194 P. 536. A church congregation acquired one of the apparently unrestricted lots, intending to build a church, and the litigation followed. Id. at 461, 194 P. 536. The church acknowledged that it knew the development was intended to be limited to single family homes but argued that the other homeowners could not seek to enjoin it from building a church unless it could "show some right, title, interest or easement in the so-called church lot," which, it contended, would have to have been created in writing on the deed to avoid the statute of frauds. Id. at 462, 194 P. 536.
¶ 14 We disagreed. We declined to apply the statute of frauds because the homeowners' relief did not rest on creation of an interest in the church's land but on "equitable principles." Id. at 464, 194 P. 536. We did not reach the issue of whether the covenant ran with the land to bind successors because the church was fully aware of the restrictions when it bought the property (i.e., all parties had notice of the restrictions). Id. at 468-69, 194 P. 536. Instead, we held that "if this suit had been against the improvement company to enjoin it from making to appellant a deed without restrictions, such suit must have succeeded upon equitable principles.... By its conduct and representations, the improvement company imposed on its remaining lots certain use restrictions which it may not now violate." Id. at 465-66, 194 P. 536. Accordingly, "based on conduct, representations and acts which in justice, between man and man, may not be repudiated," we affirmed an injunction preventing the congregation from building the church. Id. at 466, 459, 194 P. 536.
¶ 15 More recently, we observed that words on the face of a plat, such as "golf course" on one of the recorded plats here, can establish an equitable covenant limiting the use of land. Hollis v. Garwall, Inc., 137 Wn.2d 683, 691-93, 974 P.2d 836 (1999) (citing Thorstad v. Fed. Way Water & Sewer Dist., 73 Wn.App. 638, 870 P.2d 1046 (1994)).
¶ 16 Our decision that an equitable servitude may be implied is bolstered by a similar case from Oregon, Mountain High Homeowners Ass'n v. J.L. Ward Co., 228 Or.App. 424, 209 P.3d 347 (2009). Similarly to the case before us, the homeowners in Mountain High had bought homes in a development that contained a golf course complex. Id. at 427, 209 P.3d 347. Also like the case before us, "prospective buyers who asked for assurances that the golf course would remain in place were told that the golf course would continue to be there and that there was no need to worry about it." Id. Also like the case before us, the golf course fell on hard financial times and the owner shut down operations. Id. at 429, 209 P.3d 347. After a full trial, the Oregon trial court imposed an equitable servitude on the golf course property limiting its use to a golf course and entered an injunction requiring the developer "to reconstruct, maintain, and operate the nine-hole golf course for 15 years." Id. at 431, 209 P.3d 347. The Court of Appeals affirmed. Id. at 438, 209 P.3d 347. It reasoned that the imposition of an equitable servitude and an enforcing injunction was justified because
Id. at 438-39, 209 P.3d 347. We agree.
¶ 17 We find that Riverview has presented sufficient evidence to survive summary judgment under Johnson. The evidence presented creates a material question of fact of whether those with the power to burden the property induced purchasers to purchase lots on the promise that the golf course would remain a permanent fixture of the community. Under Johnson, both equitable and injunctive relief may be available. 113 Wash. at 464-65, 194 P. 536.
¶ 18 We acknowledge, that there is force to the Court of Appeals' conclusion that requiring the respondents to operate an unprofitable golf course would be inequitable. See Riverview Cmty. Grp., 173 Wash.App. at 590, 295 P.3d 258 (citing Proctor v. Huntington, 169 Wn.2d 491, 500-01, 238 P.3d 1117 (2010)). But we find nothing in this record that provides an adequate factual basis for the Court of Appeals' disposition on this basis. Further, while Riverview's complaint primarily seeks "[a] decree quieting title to an equitable servitude in defendants' real property ... that Deer Meadows and Deer Heights may continue as a ... golf course community [with] an operating 18-hole golf course" and a consistent injunction, it did not limit its prayer for relief to those remedies. CP at 20-23. Only if on remand Riverview establishes that someone with the power to encumber the golf course property did so will the question of an equitable remedy arise. At that point, the parties will be free to present evidence and argument as to the nature and scope of any appropriate equitable and injunctive relief. See, e.g., Mountain High, 228 Or.App. at 440, 209 P.3d 347 (imposing a servitude limiting the use of the property in perpetuity but only imposing the injunction for a limited period of time).
¶ 19 We affirm the Court of Appeals to the extent that it found Riverview had standing to maintain the suit, that dismissal under CR 17 and CR 19 was unwarranted, and that an equitable servitude may be created by implication. We reverse the Court of Appeals' dismissal and remand to the trial court for further proceedings consistent with this opinion.
WE CONCUR: OWENS, STEPHENS and WIGGINS, JJ., and JOHNSON J.P.T.
GORDON McCLOUD, J. (concurring in part and dissenting in part).
¶ 20 I agree with the majority that Riverview Community Group has standing to bring this lawsuit on behalf of its members and that individual landowners in the developments are not indispensable parties. Majority at 1078-80. But I also believe that it is necessary to reach the issue that the majority "leave[s] for another day," that is, whether Johnson v. Mt. Baker Park Presbyterian Church, 113 Wn. 458, 194 P. 536 (1920), or § 2.10 of the Restatement (Third) of Property: Servitudes (2000) provides controlling law on the existence of implied equitable servitudes in Washington. I conclude that Johnson is controlling precedent and that as the majority states, it held that Washington recognizes equitable servitudes by implication. Johnson, 113 Wash. at 466, 194 P. 536.
¶ 21 However, I disagree with the majority's holding that Riverview presents evidence sufficient to survive summary judgment under Johnson. Johnson and subsequent Washington decisions found implied equitable servitudes only where the landowners presented more evidence than Riverview presents here. I therefore respectfully dissent from the majority's holding on that point; I
¶ 22 To establish standing, Riverview must show that "(1) [its] members ... would otherwise have standing to sue in their own right; (2) the interests [it] seeks to protect are germane to its purpose; and (3) neither [the] claim asserted nor [the] relief requested requires the participation of its individual members." Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002) (Firefighters) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
¶ 23 "Unlike the third prong of the test, the first two prongs are constitutional in that they ensure that article III, section 2's `case or controversy' requirements are satisfied." Id. at 215, 45 P.3d 186, 50 P.3d 618 (citing United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996); U.S. Const. art. III, § 2). For the judicially created third element, the ultimate test is "`whether the circumstances of the case and the relief requested make individual participation of the association's members indispensable.'" Id. (quoting Firefighters, 103 Wash.App. at 770, 14 P.3d 193). An association generally has standing to sue "as long as one of its members has standing." E. Gig Harbor Improvement Ass'n v. Pierce County, 106 Wn.2d 707, 710, 724 P.2d 1009 (1986). These requirements "permit a single plaintiff to adequately represent the interests of its many members in a single lawsuit, thus avoiding repetitive and costly independent actions." Teamsters Local Union No. 117 v. Dep't of Corr., 145 Wn.App. 507, 512, 187 P.3d 754 (2008).
¶ 24 The dissent "would hold that Riverview fails the third element," i.e., that individual member participation is not required for relief. Dissent at 1088. It even questions whether Riverview fails the second element — seeking to vindicate interests germane to its purpose — because Riverview's "entire purpose is to bring a lawsuit." Id. at 1088 n. 1.
¶ 25 The dissent errs on both points. As to the second element — that the association seek relief that is germane to its purpose — the dissent cites no authority barring "an organization whose entire purpose is to bring a lawsuit" from bringing a lawsuit on behalf of its members. Indeed, there is none. In Save a Valuable Environment v. City of Bothell, 89 Wn.2d 862, 865, 576 P.2d 401 (1978) (SAVE), after the city of Bothell rezoned a parcel of farm land to allow construction of a major regional shopping center, a group of individuals formed a nonprofit corporation "for the declared purpose of working to maintain the quality of the living environment in the area of the Northshore School District in King and Snohomish counties," an area that included Bothell. SAVE claimed that the rezone would detrimentally affect both the environment and the economy of the area. Id. In holding that SAVE had standing to sue, we explained,
Id. at 867-68, 576 P.2d 401. Riverview asserts, "After closing down and wasting the golf course complex, the aggrieved landowners in this case banded together and formed a non-profit association to seek relief." Appellant's Opening Br. at 10; Clerk's Papers (CP) at 206. Based upon our reasoning in SAVE, Riverview meets the second element.
¶ 26 Riverview also meets the third prerequisite to organizational standing — that neither the claim asserted nor the relief requested
¶ 27 In this case, however, the parties request equitable relief, not damages. The difference is critical. In Firefighters, we held that a fire fighters' union had associational standing to sue an employer for wrongful conversion. Id. at 217, 45 P.3d 186, 50 P.3d 618. The union sought money damages, although it did not allege an injury to itself or receive an assignment of its members' damage claim. Id. at 216, 45 P.3d 186, 50 P.3d 618. We concluded that the monetary damages to each of the union members was "certain, easily ascertainable, and within the knowledge of the defendant." Id. at 215-16, 45 P.3d 186, 50 P.3d 618. We explained,
Id. at 216, 45 P.3d 186, 50 P.3d 618.
¶ 28 Similarly, in Hunt, upon which our court relied in Firefighters, the United States Supreme Court explained,
Hunt, 432 U.S. at 343, 97 S.Ct. 2434 (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 2213, 45 L.Ed.2d 343 (1975)).
¶ 29 In fact, I find no cases denying standing when the organization seeks only equitable relief and satisfies the first two elements of the test for standing. See Columbia Basin Apt. Ass'n v. City of Pasco, 268 F.3d 791, 799 (9th Cir.2001) ("Appellants request only injunctive and declaratory relief. Because these forms of relief do not require individualized proof, the third prong of the Hunt test is satisfied."); Alaska Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 938 (9th Cir.1987) ("[B]ecause the [organization] seeks declaratory and prospective relief rather than money damages, its members need not participate directly in the litigation.").
¶ 30 I therefore agree with the majority's decision that Riverview has standing.
¶ 31 I disagree with the majority's analysis of whether Riverview has offered sufficient evidence to survive summary judgment, though.
¶ 32 Johnson held, as the majority states, that based upon the existence of a common plan or development scheme, a court may impose the benefit and burden of restrictions that a common grantor or developer imposed, and under this equitable theory, a property owner in a development may be able to enforce a restriction against another property owner who is not expressly subject to the restriction. Johnson, 113 Wash. at 464-65, 194 P. 536. The Court of Appeals concluded correctly, "Although old, Johnson's holding has never been questioned." Riverview Cmty. Grp. v. Spencer & Livingston, 173 Wn.App. 568, 589, 295 P.3d 258 (2013).
¶ 33 On the other hand, the Restatement would establish equitable servitudes in a
RESTATEMENT § 2.10.
¶ 34 To establish an equitable servitude by estoppel, the Restatement requires a property owner to show (1) an express or implied representation made under circumstances where (2) it is reasonably foreseeable that the person to whom the representation is made will rely on it, (3) that the person relies on the representation, (4) that such reliance is reasonable, and (5) that establishing a servitude is necessary to avoid injustice. Mountain High Homeowners Ass'n v. J.L. Ward Co., 228 Or.App. 424, 438, 209 P.3d 347 (2009).
¶ 35 The Restatement also contains the following illustration, which uses a fact pattern similar to the facts here as an example of an equitable servitude:
RESTATEMENT § 2.9 illus. 10.
¶ 36 Under the Restatement test, as the majority implies, Riverview's case would survive summary judgment. But under the Johnson test, as I explain below, Riverview's case would not survive summary judgment. Thus, we must address which test applies in Washington.
¶ 37 As the Court of Appeals explained, Johnson is a case from our court that has not been overruled or limited. We will not overrule it unless we are convinced that it is both incorrect and harmful. State v. Njonge, ___ Wash.2d ___, ___, 334 P.3d 1068, 1074 (2014) (citing In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)). None of the parties really argue that, and my own research doesn't convince me of that. Thus, under controlling precedent, we have no reason at this point to abandon Johnson, I therefore apply the Johnson test to this case in the section below and explain more fully why Riverview might be able to overcome summary judgment under the Restatement, but not under Johnson.
¶ 38 In opposition to the respondents' Civil Rule 12(b)(7) and summary judgment motions, Riverview presented evidence to the trial court to support its implied equitable servitude claims. At the hearing on summary judgment, the court stated, "[I]n this case it's undisputed that there is nothing in writing with respect to the golf course." Verbatim Tr. of Proceedings (Dec. 23, 2011)
¶ 39 Riverview also submitted a number of declarations citing oral assurances about the golf course. Riverview member Howard Walker stated that when he purchased his lot, "I was under the distinct impression that we were purchasing a lot in an 18 hole golf course community. That impression was based on the fact that Sherie Wardian marketed the lot as such to us." Id. at 129. Walker also stated, "Sherie gave me real estate flyers that represented the community as having an 18 hole golf course as the center attraction." Id.
¶ 40 Riverview member Ken Sweeny's declaration stated that he and his wife received a membership to the golf course "as an inducement to purchase a lot." Id. at 102. Sweeny stated that he read an article in the Spokesman Review newspaper in 1999 in which Charles Spencer said that he "`just started the course so it would help the residential lots around here'" and that George Livingston built the golf course "in hopes of luring more permanent residents to the area." Id. at 102, 107. Sweeny also submitted a declaration stating that when he went with his wife to speak with Bonnie Spencer about purchasing a lot in the developments, "[w]e were introduced to Gloria [Spencer] and asked her Ts there a chance that the golf course would be broken up and sold for lots in the future'? Gloria replied, `NO, it would remain an 18 hole golf course.'" CP at 101. Sweeny said that he told Gloria Spencer, "[T]hat was the main reason my wife and I were interested in buying a lot because it was in an 18 hole golf course community." Id.
¶ 41 Riverview member Mark Jensen stated in a declaration,
Id. at 86.
¶ 42 Riverview also submitted real estate flyers and a Lake Roosevelt Recreation Guide for summer 1997 containing references to the golf course. Id. at 97-99, 138, 140, 142-44.
¶ 43 This evidence is insufficient to create a material question of fact about whether to impose an equitable servitude. In Johnson,
Id. at 465, 194 P. 536.
¶ 44 In this case, in contrast, no deed or registered plat contained a restriction about the golf course. And the marketing materials suggested no building restrictions on the respondents or on the property purchasers. The only purported writing suggesting a restriction is the single plat noting a golf course. But the fact that this plat contains express restrictions that do not reference the golf course indicates that the grantor or developer declined to impose a restriction related to the golf course. Although the record shows that the golf course existed and that it might have enticed purchasers to buy the lots, no writing indicates an assurance that the golf course would continue to operate in perpetuity. And no evidence shows an intent to bind future property owners to the alleged restriction. Riverview's evidence is thus insufficient to indicate a common plan or scheme under Johnson. Johnson did not permit oral assurances or advertising to suffice where no writing showed a common plan or scheme.
¶ 45 The majority cites Hollis for the proposition, "[W]e observed that the words on the face of a plat, such as `golf course' on one of the recorded plats here, can establish an equitable covenant limiting the use of land." Majority at 1080; Hollis v. Garwall, Inc., 137 Wn.2d 683, 974 P.2d 836 (1999). In Hollis, the court stated that "the restriction may also be contained on the face of the subdivision plat." Hollis, 137 Wash.2d at 691, 974 P.2d 836. The plat in Hollis contained an "owner's certificate" that 10 individuals signed and also contained a section labeled "Restrictions" that defined three restrictions on the use of the land. Id. at 686, 974 P.2d 836. The purchaser's deed to the property stated that it was subject to easements in the plat. All purchases took place after the filing of the plat. Id. at 686-88, 974 P.2d 836.
¶ 46 But here, Deer Meadows Plat 3, filed after at least one of the purchasers purchased his lot, contains only the label "golf course." This was the only plat that referenced a golf course. Neither the plats nor any of the deeds contained explicit restrictions referencing the golf course, although they contained other restrictions, conditions, and covenants.
¶ 47 Finally, the majority cites Mountain High, a case from the Oregon Court of Appeals. The majority states that this case supports its argument, citing the Oregon court's reasoning:
¶ 48 Under Johnson, the crucial fact in this case is that the only writing supporting Riverview's argument is one plat out of four registered plats containing an area marked "golf course." Although Riverview's evidence of oral and written representations might suffice under the Restatement approach, Riverview raises no genuine issue of material fact that any restriction existed under Washington law.
¶ 49 Because Riverview satisfies all of the elements for organizational standing established in Firefighters, I agree with the majority's decision that Riverview can bring this action on behalf of its members and that the individual property owners are not essential parties. But Riverview's evidence in opposition to summary judgment fails to raise a genuine issue of material fact about whether the respondents created a common plan or development scheme under Johnson. I would affirm the Court of Appeals' dismissal on alternate grounds. I therefore respectfully dissent in part.
FAIRHURST, J. (dissenting).
¶ 50 Riverview Community Group is a nonprofit organization that was formed for the sole purpose of suing on its members' behalf to continue the operation of the golf course or at least prevent that land from being subdivided into more homes. Riverview is the only plaintiff. None of the individual property owners are joined in this suit. Riverview was formed on or about September 20, 2010, meaning it was not in existence at any time during the events underlying this cause of action. No promises were made to Riverview. No marketing was done to it. Riverview is an entirely new entity apparently formed so the property owners can avoid suing individually or complying with the requirements for class action suits. I would find that Riverview does not have standing to bring suit in this case and respectfully dissent.
¶ 51 The majority correctly quotes the rule for organizational standing from International Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002):
However, unlike the majority, I would hold Riverview fails the third element.
¶ 52 Case law discussing this third element of the test for organizational standing focuses on whether the remedy sought required the testimony of the individuals. Both Ironworkers District Council of the Pacific Northwest v. University of Washington, 93 Wn.App. 735, 741, 970 P.2d 351 (1999), and Firefighters, 146 Wash.2d at 214, 45 P.3d 186, 50 P.3d 618, assert that if an organization seeks an injunction, that injunctive relief generally benefits every member of an association and individual testimony as to how the injunction will benefit each member is not necessary. See also Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Similarly, the majority focuses on
¶ 53 But the third element requires that neither the claim asserted nor the relief requested requires individual participation. Here, the claim for an implied equitable servitude requires the individual participation of the property owners. An equitable servitude is a restriction on property that runs with the land. This servitude was not written or explicit. Riverview claims the court should find the servitude is implied based on representations the defendants made to the property owners that the land would be restricted to certain use. As a nonprofit, Riverview is a separate entity from its members and does not itself have any rights or interest in the servitude created. See Apostolic Faith Mission of Portland v. Christian Evangelical Church, 55 Wn.2d 364, 367, 347 P.2d 1059 (1960). Since it did not exist at the relevant time, no representations were made to it that could support this claim for an implied equitable servitude.
¶ 54 Riverview is made up of at least five property owners in the development, but we have no information about the existence or the interests of any other members of Riverview. These property owners bought their properties from different entities: George Livingston, Charlie and Gloria Spencer through S.O.S. LLC, the Spencer & Livingston partnership, or TURF Realty. There is no consistency regarding who made these promises from which this court should imply the equitable servitude. And if after remand the court finds that this golf course must continue to be operated, it is unclear against whom a remedy would be imposed. Since the particular representations made to the property owner make up the entire claim for an implied equitable servitude, the testimony of the individual property owners is necessary.
¶ 55 To satisfy the third element for organizational standing, the ultimate question is "`whether the circumstances of the case and the relief requested make individual participation of the association's members indispensable.'" Firefighters, 146 Wash.2d at 215, 45 P.3d 186, 50 P.3d 618 (quoting Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports, 103 Wn.App. 764, 770, 14 P.3d 193 (2000) (citing Warth, 422 U.S. at 511, 95 S.Ct. 2197)). Here, the testimony of the individual property owners is imperative and the members' participation indispensable because of the nature of the claim. I would hold Riverview does not have standing to bring suit.
¶ 56 The potential implications from the majority opinion are disconcerting. Here, we essentially have a plaintiff who is acting as if it is the named class plaintiff for an unnamed group of representative plaintiffs without complying with CR 23. By not clearly admonishing this circumvention of basic court rules and forcing the plaintiffs to bring this meritorious suit in the proper way, the majority opens the door for groups of individuals with similar claims against a group of people to simply form a nonprofit to sue on their behalf, thereby avoiding the stringent class action requirements or the spotlight of individual litigation. Under the facts of this case, the property owners may
¶ 57 I would find that Riverview does not have standing to bring suit and dismiss the case. Since I would find that Riverview is not a proper plaintiff, I do not reach the question of whether implied equitable servitudes are available in Washington.
Id. at 95, 124. And contracts for lots in Deer Meadow Tract Plat 1 and Deer Heights Plat 1 state, "13. There are no verbal or other agreements which modify or affect this agreement unless attached hereto." Id. at 106, 135. I agree with the majority, however, that because this is a case about equity, not contract interpretation, the parol evidence rule is not at issue here. Majority at 1080 n. 2.
